the acquisition of foreign intelligence information from person reasonably believe to be outside of the United States [without a warrant.]

What the Court did not decide was the question of whether, absent Congressional prohibition, the President has inherent authority to engage in such activity. Indeed, it seems implicit in the discussion that in fact the President does not have such authority.

Consider for a moment what the Bush Administration position is regarding its violations of FISA from 2001 to 2007, when it engaged in warrantless surveillance with warrants issued pursuant to FISA:

Like Cass Sunstein, Justice cites Hamdi v. Rumsfeld to argue that the Supreme Court recognized the AUMF as authorizing the President to invoke his Commander in Chief power. Like Sunstein, Justice ignores that the Hamdi Court also restricted the President's Commander in Chief power, making it subject to Congress' procedural scheme for processing petitions for writ of habeas corpus. So again this disingenuous argument is raised, and needs debunking[.]

It is a bitter irony that while asserting plenary power as Commander in Chief and defending the violations of FISA by President Bush as supported by the Article II powers accorded the President, at the same time Republicans have played Chicken Little regarding the possible expiration of the Patriot Act and the potential enactment of the ban on torture. These two lines of argument are irreconcilable. What need for the Patriot Act when the President can do whatever he pleases? What harm can a ban on torture cause when the President can violate federal law as he pleases?

Of course this is all nonsense. The arguments regarding the War Powers have always centered on whether the President has the power to wage war without Congressional authorization. Emblematic of this dispute is the War Powers Resolution. And that debate is entirely about who has the power to initiate hostilities. Once hostilities are properly commenced there is no dispute that the President is the sole Commander in Chief.

But never before has a President argued that this power as Commander in Chief provides the President carte blanche to violate federal law. Indeed, in Hamdi, the idea is treated as beneath consideration as the Court does not even address the idea that the President, acting as Commander in Chief, can abolish the right to a writ of habeas corpus, as that power resides SOLELY with the Congress:

"All agree that, absent suspension, remains available to all persons detained in the United States. U.S. Const., Art. 1, Section 9 . . . Only in the rarest circumstances has the Congress seen fit to suspend the Writ. . . . At all other times, it remains a critical check on the Executive, ensuring that it does not detain individuals, except in accordance to law."

Well maybe it is only Constitutional rights that check the power of the President as Commander in Chief? Well no. The Hamdi court said:

"It is undisputed that Hamdi is properly before an Article III court under 28 U.S.C. Section 2241. Further all agree the Section 2241 and its companion provisions provide at least the outline of a skeletal procedure to be afforded a petitioner for habeas review."

Implicitly, the Hamdi Court rejects the notion that the President, acting as Commander in Chief has plenary power, unchecked by federal law or the Constitution. And Hamdi involved an act, as the Court expressly acknowledged, that is a traditional and recognized military function -- the detention of enemy combatants in a war zone. In this case, Hamdi was captured in Afghanistan. Bush's deliberate violations of FISA involves actions which clearly do NOT fall into the realm of traditional military activity. Electronic surveillance, wiretapping and other similar activities IN THE UNITED STATES are far removed from the capture of enemy combatants in Afghanistan.

Thus, if the President's actions in Hamdi are subject to Congressional acts and judicial review, it is unfathomable that his violations of FISA somehow escape these checks.

It is particularly interesting how the Bush Administration and Republicans in Congress were able to pass a law restricting the right to habeas corpus without arguing that the President had unfettered Commander in Chief power in response to Hamdi.

If they could do it for the traditional military act of detaining enemy combatants, why not with FISA? Why did the President of the United States choose instead to deliberately violate federal law? And why do some legal commentators choose to be apologists for this nefarious act?

In short, the passage of the PAA was a rebuke to the Bush Administration's legal position. A court's passing on the PAA can hardly be considered a vindication of the Bush Administration's absurd arguments.

Yet, the New York Times is insistent on maintaining this absurdity. The Media, even the better ones, are simply not very good at their jobs.

Speaking for me only